Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4341 of 2019 Applicant :- Suryakant Opposite Party :- State Of U.P.
Counsel for Applicant :- Shahabuddin,Prem Shankar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Suryakant in Case Crime No.893 of 2018, under Section 354, 376-D IPC, Police Station Dibai, District Bulandshahr.
Heard Sri Prem Shankar, learned counsel for the applicant and Sri Pankaj Srivastava, learned AGA along with Sri Madhnesh Prasad Singh, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that in the FIR lodged by the prosecutrix the allegation is one of molestation alone with no allegation of rape. Likewise, in the statement under Section 161 Cr.P.C., recorded on 8.10.2018, the account is one of outraging her modesty with no allegation of rape. In the statement made to the doctor during medical examination, the allegation is one of outraging the prosecutrix's modesty and it has been added in explicit words that she was not ravished, with the prosecutrix expressing herself in the following words: "ममेरमे ससाथ उसनमे गलत कसाम नहहीं ककयसा। ". It is submitted that in a sudden turn, the prosecutrix has changed her stand and alleged rape in the statement before the Magistrate recorded on 17.10.2018 by the applicant and an unknown offender. The submission of learned counsel for the applicant is that the prosecution version is one that has been not only improved, but generically changed from a case of outraging the prosecutrix's modesty to one of rape, from the FIR across the various statements during investigation to the statement under Section 164 Cr.P.C., before the Magistrate. The allegation of rape has been brought in for the first time in the statement under Section 164 Cr.P.C. It is submitted that such a generically altered version for the first time in the statement under Section 164 Cr.P.C., is the product of premeditation and afterthought. In the submission of learned counsel for the applicant, the prosecution case is one that is inherently undependable on the basis of which the applicant cannot be detained, pending trial.
Learned AGA has opposed the prayer for bail but does not dispute the fact that the allegation of rape has figured for the first time in the statement under Section 164 Cr.P.C., and not earlier.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that in the earlier accounts of the occurrence including the FIR, the statement of the prosecutrix under Section 161 Cr.P.C., and the statement made to the doctor, there is no allegation of rape but one of outraging the prosecutrix's modesty, the fact that the allegation of rape has figured for the first time in the FIR, the fact that prima facie in the medico legal report, there is no injury compatible with a case of rape, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Suryakant in Case Crime No.893 of 2018, under Section 354, 376-D IPC, Police Station Dibai, District Bulandshahr be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
Order Date :- 30.1.2019 NSC